Environmental Management Chapter ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT WATER DIVISION - WATER QUALITY PROGRAM ADMINISTRATIVE CODE

Transcription

1 ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT WATER DIVISION - WATER QUALITY PROGRAM ADMINISTRATIVE CODE CHAPTER ADMINISTRATIVE GUIDELINES AND PROCEDURES FOR THE ALABAMA UNDERGROUND AND ABOVEGROUND STORAGE TANK (TANK TRUST FUND) TRUST FUND TABLE OF CONTENTS Purpose Definitions Applicability Tank Trust Fund Eligibility Requirements For Underground Storage Tanks Tank Trust Fund Eligibility Requirements For Aboveground Storage Tanks Loss And Restoration Of Tank Trust Fund Eligibility Trust Fund Fee And Charge Authorized ADEM Disbursements Of Tank Trust Funds Scope Of Tank Trust Fund Coverage Requirements For Tank Trust Fund Coverage Of Response Action Costs For UST And AST Systems Requirements For Tank Trust Fund Coverage Of Third Party Claims Tank Trust Fund Obligations Tank Trust Fund Ineligible Costs Applications For Payment Tank Trust Fund Payment Procedures Approval Of Response Action Contractors Insufficient Funds Cost Recovery Allowed Adjustment Of Limit Of Owner Or Operator's Financial Responsibility Severability Purpose. This chapter is promulgated to establish administrative guidelines and procedures to determine the manner in which disbursements are made from the Alabama Underground and Aboveground Storage Tank (Tank Trust Fund) and to implement the Supp. 9/30/

2 Chapter Environmental Management purposes and objectives of the Alabama Underground Storage Tank Trust Fund Act of 1988 and the Alabama Underground and Aboveground Storage Tank Trust Fund Acts of (Act No Regular Session and Act No Special Session). Statutory Authority: Code of Ala. 1975, et seq. March 18, 1994; effective April 22, Definitions. The following words and terms, when used in this Chapter, shall have the following meanings unless the context clearly indicates otherwise. (a) "ADEM" means the Alabama Department of Environmental Management. (b) "Commission" means The Alabama Environmental Management Commission. (c) "Connected piping" means all underground an aboveground piping including valves, elbows, joints, flanges, and flexible connectors attached to a tank system through which "motor fuels" flow. For the purpose of determining how much piping is connected to any individual underground storage tank UST system, the piping that joins two UST systems should be allocated equally between them. (d) "Consumptive use" with respect to heating oil means consumed on the premises. (e) "Department" means the Alabama Department of Environmental Management. (f) "Director" means the Director of the Alabama Department of Environmental Management. (g) "Eligible owner" means an owner or operator that is in "Substantial Compliance" as that term is defined in paragraph (ff) of this Rule. (h) "Farm tank" is a tank located on a tract of land, which may or may not include associated residences and improvements, devoted to the production of crops or raising animals, including fish. A farm tank must be located on the farm property. "Farm" includes fish hatcheries, rangeland and nurseries with growing operations. Supp. 9/30/

3 (i) "Final judgment" means any judgment, obtained by a third party in a third party claim, that is enforceable in this State. (j) "Flow-through process tank" is a tank that forms an integral part of a production process through which there is a steady, variable, recurring, or intermittent flow of materials during the operation of the process. Flow-through process tanks do not include tanks used for the storage of materials prior to their introduction into the production process or for the storage of finished products or by-products from the production process. (k) "Free product" refers to a motor fuel that is present as a nonaqueous phase liquid (e.g., liquid not dissolved in water). (l) "Gathering lines" means any pipeline, equipment, facility, or building used in the transportation of oil or gas during oil or gas production or gathering operations. (m) "Groundwater" means water below the land surface in a zone of saturation. (n) "Heating oil" means petroleum that is No. 1, No. 2, No. 4--light, No. 4--heavy, No. 5--light, No. 5--heavy, and No. 6 technical grades of fuel oil; other residual fuel oils (including Navy Special Fuel Oil and Bunker C); and other fuels when used as substitutes for one of these fuel oils. "Heating oil" is typically used in the operation of heating equipment, boilers, or furnaces. (o) "Hydraulic lift tanks" means a tank holding hydraulic fluid for a closed-loop mechanical system that uses compressed air or hydraulic fluid to operate lifts, elevators, and other similar devices. (p) "Liquid trap" means sumps, well cellars, and other traps used in association with oil and gas production, gathering, and extraction operations (including gas production plants), for the purpose of collecting oil, water, and other liquids. These liquid traps may temporarily collect liquids for subsequent disposition or reinjection into a production or pipeline stream, or may collect and separate liquids from a gas stream. (q) "Motor fuels" means all grades of gasoline including gasohol or any gasoline blend, number 1 diesel, number 2 diesel, kerosene and all aviation fuels. Supp. 9/30/

4 Chapter Environmental Management (r) "Noncommercial purposes" with respect to motor fuel means not for resale. (s) "On the premises where stored" with respect to heating oil means UST or AST systems located on the same property where the stored heating oil is used. (t) "Operator" means any person in control of, or having responsibility for, the daily operation of the UST or Aboveground Storage Tank (AST) system. (u) "Owner" means, in the case of an UST system in use on November 8, 1984, or brought into use after that date, or in the case of an AST in use on August 1, 1993, or brought into use after August 1, 1993, any person who owns an UST or AST system used for storage, use, or dispensing of motor fuels; and in the case of any UST system in use before November 8, 1984, but not longer in use on that date, or an AST in use before August 1, 1993, but no longer in use on that date, the present owner of the underground storage tank or aboveground storage tank system and any person who owned such underground storage tank or aboveground storage tank system immediately before the discontinuation of its use. For the purposes of this chapter, the person who registers the underground storage tank or aboveground storage tank is, and shall be considered the owner. (v) "Person" means any natural person, any firm, association, partnership, corporation, trust, the state of Alabama, and any agency of the state of Alabama, governmental entity, a consortium, a joint venture, a commercial entity and any other legal entity. (w) "Pipe" or "Piping" means a hollow cylinder or tubular conduit that is constructed of non-earthen materials. (x) "Pipeline facilities (including gathering lines)" are new and existing pipe right-of-way and any associated equipment, facilities, or buildings. (y) "Reasonable cost" means that monetary amount or range, as determined by the Department, which is commensurate with a response action, where the Department's determination is based on an evaluation of typical costs expected for the particular response action under review, with respect to the activities' scope and complexity. (z) "Release" means any spilling, leaking, emitting, discharging, escaping, leaching or disposing from an UST or AST into groundwater, surface water or subsurface soils. Supp. 9/30/

5 (aa) "Residential tank" is a tank located on property used primarily for dwelling purposes. (bb) "Response Action" means any activity, including evaluation, planning, design, engineering, construction, and ancillary service, which is carried out in response to any discharge, release, or threatened release of "motor fuels". (cc) "Response Action Contractor" means a person who has been approved by the Department to carry out any response action, including a person retained or hired by such person to provide services relating to a response action. (dd) "Septic tank" is a water-tight covered receptacle designed to receive or process, through liquid separation or biological digestion, the sewage discharged from a building sewer. The effluent from such receptacle is distributed for disposal through the soil and settled solids and scum from the tanks are pumped out periodically and hauled to a treatment facility. (ee) "Storm-water or wastewater collection system" means piping, pumps, conduits, and any other equipment necessary to collect and transport the flow of surface water run-off resulting from precipitation, or domestic, commercial, or industrial wastewater to and from retention areas or any areas where treatment is designated to occur. The collection of storm water and wastewater does not include treatment except where incidental to conveyance. (ff) "Substantial Compliance" shall mean that an owner or operator of an underground or aboveground storage tank has registered that tank with the Department, has timely paid the annual fee, if any, has made a good faith effort to comply with the state and federal laws applicable to underground or aboveground storage tanks, and the rules and regulations adopted pursuant thereto, shall have met the financial responsibility requirements imposed by Code of Ala. 1975, Section (1990 Replacement Vol.) and shall have promptly notified the Director of any third party claim or suit made against the owner or operator. (gg) "Surface impoundment" is a natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials (although it may be lined with man-made materials) that is not an injection well. (hh) "Tangible net worth" means the tangible assets that remain after deducting liabilities; such assets do not include intangibles such as goodwill and rights to patents or Supp. 9/30/

6 Chapter Environmental Management royalties. For purposes of this definition, "assets" means all existing and all probable future economic benefits obtained or controlled by a particular entity as a result of past transactions. (ii) "Tank" is a stationary device designed to contain an accumulation of "motor fuels" and constructed of non-earthen materials (e.g., concrete, steel, plastic) that provide structural support. (jj) "Third Party Claim" means any civil action brought or asserted by any person against any owner or operator of any underground or aboveground storage tank who is in substantial compliance, as that term is defined above, for bodily injury or property damage which damages are the direct result of an accidental release arising from the operation of motor fuel underground or aboveground storage tanks covered under this Chapter. (kk) "Underground area" means an underground room, such as a basement, cellar, shaft or vault, providing enough space for physical inspection of the exterior of the tanks situated on or above the surface of the floor. (ll) "Underground storage tank" or "UST" means any one or combination of tanks (including underground pipes connected thereto) that is used to contain an accumulation of motor fuels, and the volume of which (including the volume of underground pipes connected thereto) is 10 percent or more beneath the surface of the ground. (mm) "Aboveground storage tank" or "AST" means any one or combination of stationary tanks affixed permanently to the ground or other support structure (including pipes connected thereto) used to contain an accumulation of motor fuels, the volume of which (including pipes connected thereto) is greater than 90 percent above the surface of the ground. The terms underground and aboveground storage tank do not include any of the following: 1. Farm or residential tank of 1,100 gallons or less capacity used for storing "motor fuel" for noncommercial purposes; 2. Tank used for storing heating oil for consumptive use on the premises where stored; 3. Septic tank; Supp. 9/30/

7 4. Pipeline facility (including gathering lines) regulated under: (i) The Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. App. 1671, et seq.), or (ii) The Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. App. 2001, et seq.), or (iii) State laws comparable to the provisions of law in Subparagraph (i) or (ii) above; 5. Surface impoundment, pit, pond, or lagoon; 6. Storm-water or wastewater collection system; 7. Flow-through process tank; 8. Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations; or 9. Storage tanks situated in an underground area (such as a basement cellar, mine working, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor; 10. Other underground storage tanks exempted by the administrator of the federal Environmental Protection Agency; and 11. Piping connected to any of the above exemptions. 12. Pipeline terminals, refinery terminals, rail and barge terminals and tanks associated with each. (nn) "AST system" or "Tank system" means an aboveground storage tank connected piping, ancillary equipment, and containment system, if any. (oo) "UST system" or "Tank system" means an underground storage tank, connected piping, ancillary equipment, and containment system, if any. (pp) "Bulk facility" means a facility, including pipeline terminals, refinery terminals, motor fuel distribution terminals, rail and barge terminals, and associated tanks, connected or separate, from which motor fuels are withdrawn from bulk and delivered into a cargo tank used to transport these materials. Supp. 9/30/

8 Chapter Environmental Management (qq) "Cargo tank" means a assembly that is used for transporting, hauling, or delivering liquids and that consists of a tank having one or more compartments mounted on a wagon, truck, trailer. (rr) "Withdrawal from bulk" means the removal of a motor fuel or a combination of motor fuels from bulk facility storage tanks directly into a cargo tank to be transported to a location in this state. The underground and aboveground storage tank trust fund charge shall not be assessed on motor fuel "withdrawn from bulk: the ultimate destination of which is outside the state of Alabama. Withdrawal of different grades of motor fuel into separate compartments of a cargo tank does not constitute separate withdrawals fro bulk. The underground and aboveground storage tank trust fund charge shall not be assessed on fuel oil "withdrawn from bulk" used in the generation of electricity. (ss) "Wastewater treatment tank" means a tank that is designated to receive and treat an influent wastewater through physical, chemical, or biological methods. (tt) "Waters" means all waters of any river, stream, water course, pond, lake, coastal, ground, or surface waters wholly or partially within the state s natural or artificial. (uu) "Registration" means notification to the Department of the existence of a tank system which satisfies the requirements of ADEM Admin. Code Rule (vv) "Fuel Oil" mean #1 or #2 diesel. (ww) Trust Fund Fee means an annual fee to be charged for each underground storage tank containing a motor fuel. (xx) Trust Fund Charge means a charge imposed on each gallon of motor fuel first withdrawal from bulk. Statutory Authority: Code of Ala. 1975, March 18, 1994; effective April 22, Amended: Filed August 26, 2004; effective September 30, Applicability. (1) The requirements of this chapter apply to all owners and operators of an UST or AST system as defined in Supp. 9/30/

9 except as otherwise provided for in paragraph (3) of this Rule. (2) References in this Chapter to response action and closure requirements of ADEM Admin. Code R through shall also be applicable to response actions taken for releases from aboveground storage tanks. Where, due to differences between aboveground and underground storage tank systems, an owner and/or operator cannot comply with the provisions of Chapter 15, Rule through.37, the Department may waive those provisions of this Chapter which are not applicable to aboveground storage tank systems. (3) The following UST or AST systems are excluded from the requirements of this Chapter: (a) State and federal government entities whose debts and liabilities are debts and liabilities of a state or the United States are exempt from the requirements of this chapter. (b) Any UST or AST system holding hazardous waste listed or identified under Division 14 of the ADEM Administrative Code, or a mixture of such hazardous wastes and motor fuels. (c) Any wastewater treatment tank system that is part of a wastewater treatment facility regulated under Chapter or of the ADEM Administrative Code. (d) Equipment or machinery that contains motor fuels for operational purposes such as hydraulic lift tanks and electrical equipment tanks. (e) less. Any UST system whose capacity is 110 gallons or (f) Any emergency spill or overflow containment UST or AST system that is expeditiously emptied after use. (4) Eligible owners or operators are entitled to reimbursement of reasonable costs and coverage for third party claims from the Tank Trust Fund resulting from the release of motor fuels from an UST only for releases that were discovered and subsequently reported after September 30, Eligible owners or operators are entitled to reimbursement of reasonable costs and coverage for third party claims from the Tank Trust Fund resulting from the release of motor fuels from an AST only for releases that were discovered and subsequently reported on or after August 1, Statutory Authority: Code of Ala. 1975, et seq. Supp. 9/30/

10 Chapter Environmental Management March ; effective April 22, Amended: Filed August 28, 2003; effective October 2, Tank Trust Fund Eligibility Requirements For Underground Storage Tanks. Every owner or operator of an UST is required to establish and maintain Trust Fund eligibility in accordance with the following requirements: (a) Registration of tank(s) with the Department. (b) Annual payment of Tank Trust Fund and Underground Storage Tank Regulatory Fees for each UST until such time as permanent closure requirements of Chapter of the ADEM Administrative Code are satisfied, if any. (c) The owner or operator remains in substantial compliance for each UST. (d) Every owner or operator of an UST is required to maintain financial responsibility in the amount of $5000 per occurrence ($25,000 aggregate) or another amount if required by the Commission, by any one or combination of the following: insurance, guarantee, surety bond, letter of credit or qualification as a self-insurer by demonstration of a tangible net worth in the amount of $25,000. (e) The owner or operator shall maintain the following records and submit or make them available to the Department upon request. 1. Evidence of current financial responsibility for $5,000 per occurrence ($25,000 aggregate) or other amount as may be required by the Commission; or 2. Evidence of current ability to self-insure by demonstrating net worth of $25,000; and 3. Any other records as may be required by the Department. (f) All records identified in subparagraph (e) above shall be retained until one of the following is accomplished: 1. Closure requirements of Chapter of the ADEM Administrative Code are satisfied; Supp. 9/30/

11 2. Ownership of an UST, is transferred to a new owner; or 3. Owner or operator is instructed otherwise by the Department. Statutory Authority: Code of Ala. 1975, , March 18, 1994; effective April 22, Tank Trust Fund Eligibility Requirements For Aboveground Storage Tanks. Every owner or operator of an AST is required to establish and maintain Trust Fund eligibility in accordance with the following requirements: (a) Registration of the tanks with the Department. (b) The owner or operator remains in substantial compliance for each AST. (c) The owner or operator must comply with ADEM Admin. Code R and (r) and Code of Federal Regulations (CFR) Title 40 Part 112 (40 CFR 112). (d) Every owner or operator of an AST is required to maintain financial responsibility in the amount of $10,000 per occurrence or another amount if required by the Commission, by any one or combination of the following: insurance, guarantee, surety bond, letter of credit or qualification as a self-insurer by demonstration of a tangible net worth in the amount of $25,000. (e) The owner or operator shall maintain the following records and submit or make them available to the Department upon request. 1. Evidence of current financial responsibility for $10,000 per occurrence or other amount as may be required by the Commission; or 2. Evidence of current ability to self-insure by demonstrating net worth of $25,000; and 3. Any other records as may be required by the Department. Supp. 9/30/

12 Chapter Environmental Management (f) All records identified in subparagraph (e) above shall be retained until one of the following is accomplished: 1. Closure requirements of Chapter of the ADEM Administrative Code are satisfied; 2. Ownership of an AST, is transferred to a new owner; or 3. Owner or operator is instructed otherwise by the Department. Author: James Stevens Statutory Authority: Code of Ala. 1975, 22A-35A-5, 22A-35A-7. History: Amended: Filed March 18, 1994; effective April 22, Loss And Restoration Of Tank Trust Fund Eligibility. (1) If at the time of discovery of a release, the Department determines that an owner or operator has failed to establish Tank Trust Fund eligibility in accordance with Rule or.05, response action costs and third party claims associated with that release are not eligible for coverage by the Tank Trust Fund. (2) If at any time after the determination of eligibility for Tank Trust Fund coverage, the Department determines that an owner or operator has failed to maintain Tank Trust Fund eligibility, the Department will provide notice to the owner or operator of such failure to maintain eligibility. The owner or operator shall have thirty (30) days from receipt of such notice, or such other time period as the Department may allow, to provide evidence of compliance with all Tank Trust Fund eligibility requirements. If, after completion of this time period, the owner or operator fails to resolve the non-compliance, the Director shall issue a notice of Tank Trust Fund ineligibility and enforcement actions including penalty assessment may be initiated. Statutory Authority: Code of Ala. 1975, March 18, 1994; effective April 22, Trust Fund Fee And Charge. Supp. 9/30/

13 (1) In order to participate in the liability limitations and reimbursement benefits of the Tank Trust Fund, an UST and/or AST owner or operator shall pay an annual Tank Trust Fund Fee, if any. The Commission may set annual fees the total of which shall not exceed $150 per regulated tank. (2) Each year UST and/or AST owners or operators will be notified by the Department of the amount of the required Tank Trust Fund Fee, if any, which will be due within thirty (30) days of the invoice date. For underground storage tanks and/or aboveground storage tanks brought into service on or after October 1 of each year the Tank Trust Fund fee is due with the registration of the tank(s) with the Department. (3) To protect the financial integrity of the fund, the Commission may make special assessments of Tank Trust Fund Fees. However, the total fee, if any, shall not exceed $150 per regulated tank per year. Special assessment fees will be due within thirty (30) days of the invoice date. (4) The failure to pay Tank Trust Fund Fees, if any, within the time prescribed by the Department shall make the owner or operator of an UST and/or AST liable for a late charge penalty in an amount not to exceed $100 per tank for each day such payment is delinquent and will result in the loss of Trust Fund eligibility. The Director, for good cause shown, may abate all or part of said late charge penalty. (5) The Trust Fund Fee is set at $0.00 per tank. (6) The Trust Fund Charge if set at $0.01 per gallon. Statutory Authority: Code of Ala. 1975, March 18, 1994; effective April 22, Amended: Filed August 26, 2004; effective September 30, Amended: Filed October 20, 2009; effective November 24, 2009; operative January 1, Amended: Filed December 12, 2011; effective January 16, Authorized ADEM Disbursements Of Tank Trust Funds. (1) Whenever in the Director's determination a release of motor fuels may pose a threat to the environment or the public health, safety or welfare, and the owner or operator of the underground or aboveground storage tank has been found to be Supp. 9/30/

14 Chapter Environmental Management eligible for Tank Trust Fund coverage, the Department shall, subject to the provisions of this Chapter, disburse monies available in the fund to provide for: (a) Investigation, assessment and remediation of sites contaminated by a release of motor fuels in accordance with the requirements of Chapter of the ADEM Administrative Code which may consist of clean-up of affected soil and waters, using cost effective alternatives that are technologically feasible and reliable, and that provide adequate protection of the public health, safety and welfare and minimize environmental damage, in accordance with corrective action requirements of Chapter of the ADEM Administrative Code. (b) The interim replacement and permanent restoration of potable water supplies. (2) Monies held in the Fund shall be disbursed for making payments to third parties who bring suit relative to an UST or AST release against the Director, in his official capacity as representative of the Fund, and the owner or operator of an UST or AST who is in substantial compliance as stated in this Chapter, when such third party obtains a final judgment in that action which is enforceable in this State and the eligible owner or operator submits proof of payment of the first $5,000 in the case of a UST or in the case of a AST the eligible owner or operator submits proof of payment of the first $10, Statutory Authority: Code of Ala. 1975, , , March 18, 1994; effective April 22, Scope Of Tank Trust Fund Coverage. (1) The Tank Trust Fund will provide to eligible UST or AST owners or operators coverage for the reasonable cost of response actions and for compensation of third parties for bodily injury and property damage resulting from accidental releases arising from the operation of an UST or AST which stores motor fuels. (2) The financial responsibility requirements for eligible UST owners or operators will be $5,000 for UST owners or operators per occurrence and $10, per occurrence for AST owners or operators for taking response actions and compensation Supp. 9/30/

15 of third parties, unless another amount is established by the Commission. (3) The monies expended from the Tank Trust Fund to eligible UST owners or operators for response actions may be disbursed only up to such sum as will cause the Resource Conservation and Recovery Act, Subtitle I, the Superfund Amendments and Reauthorization Act of 1986, and other federal laws governing disbursements of federal funds for clean up and/or third party claims to come into effect. (4) Per Occurrence Indemnification Limit. The total amount of reimbursement available from the fund as a result of a release from underground or aboveground storage tanks shall not exceed under any circumstance the per occurrence indemnification limit established under this rule, which shall be determined by the commission upon recommendation of the trust fund management board, on an annual basis. In no event shall combined claims against the fund for payment of response actions and third-party claims exceed the per occurrence indemnification limit. (a) If the per occurrence indemnification limit is increased, such increased limit shall be available for response actions costs and/or third party claims as to those existing sites that are eligible for trust fund benefits, but such increased limits shall not be available to existing sites where the department, as of the effective date of such increase, has issued a No Further Action Letter. (b) Beginning October 1, 2015, the per occurrence indemnification limit is set at one million, five hundred thousand dollars ($1,500,000), less the applicable deductible. (5) The indemnification limit of the Tank Trust Fund with respect to satisfaction of third party claims shall be in the following amounts: (a) For owners and operators of motor fuels underground and aboveground storage tanks that are located at petroleum marketing facilities, or that handle an average of more than 10,000 gallons of motor fuels per month based on annual throughput for the previous calendar year; $1 million per occurrence; (b) For all other owners and operators of motor fuels underground and aboveground storage tanks; $500,000 per occurrence; Supp. 9/30/

16 Chapter Environmental Management (c) For owners and operators of 1 to 100 motor fuels underground and aboveground storage tanks, $1 million annual aggregate; and (d) For owners and operators of more than 101 motor fuels underground and aboveground storage tanks, $2 million annual aggregate. (6) The Tank Trust Fund will provide to eligible UST or AST owners or operators coverage for the reasonable cost of response actions required by the Department, where that owner or operator's UST or AST system was found not to be the source of the release which prompted the Department's requirement for the response action. (7) The financial responsibility requirements for eligible UST or AST owners as described in paragraph (2) above of this Rule, shall upon approval by the Commission, be waived. Statutory Authority: Code of Ala. 1975, , , March 18, 1994; effective April 22, Amended: Filed October 20, 2009; effective November 24, 2009; operative January 1, Amended: Filed October 22, 2013; effective November 26, Amended: August 25, 2015; effective September 29, Requirements For Tank Trust Fund Coverage Of Response Action Costs For UST And AST Systems. (1) An eligible owner or operator conducting response actions is entitled to coverage of reasonable costs from the Tank Trust Fund, subject to the following provisions: (a) Upon confirmation and reporting of a release in accordance with the requirements of Rules through of the ADEM Administrative Code the owner or operator shall select a contractor from the Department's list of approved contractors, or upon approval by the Department under the conditions identified in Rule (5) and (6), may use the owner or operator's personnel and/or equipment to accomplish all or part of an investigation and necessary corrective action. If a contractor is to be retained the Department must be notified in writing of such a selection within twenty (20) days of reporting of a release. A contractual agreement must be established between the owner or operator and Supp. 9/30/

17 the contractor, and the Department must be provided a copy of the contractual agreement. The owner or operator of an UST is responsible for the first $5000 or the owner or operator of an AST is responsible for the first $10,000 of eligible response action costs, or other such amount as may be set by the Commission, as the owner's limit of individual responsibility. (b) If initial release responses, abatement measures and initial free product removal, conducted in accordance with Rules through and of the ADEM Administrative Code, are required to properly stabilize a site and prevent significant continuing damage to the environment or risk to human health, and the cost of such required measures is expected to exceed the individual limit of financial responsibility established by the Commission, the owner, or the approved response action contractor may contact the Department to obtain verbal or written approval to allow additional expenditures prior to the submittal of a cost proposal. Additional expenditures may be authorized by the Department up to a total of $20,000 which may be reimbursable from the Tank Trust Fund to achieve site stabilization and immediate protection of human health or the environment. Such approval may be given following the actual expenditures if immediate actions were necessary to protect human health or the environment and Departmental personnel were unavailable. In such a case, the Department must be notified of the actions taken within twenty-four hours. (c) Following completion of necessary site stabilization actions as described in Subparagraph (b) of this Rule, subsequent investigative and corrective actions must be performed by approved contractors, or by owners or operators approved by the Department to perform such actions, and in accordance with the requirements of Rules through of the ADEM Administrative Code. The contractor selection, Departmental notification and contractual requirements as described in subparagraph (a) of this Rule, relative to approved contractors, will be applicable. (d) Prior to initiating any of the response actions identified in 1. through 6. below, unless otherwise directed by the Department, a cost proposal shall be submitted to the Department for conducting the proposed response action. Cost proposals shall be submitted in accordance with a format which shall be established by the Department. 1. Preliminary Investigation (in accordance with Rule and ). Supp. 9/30/

18 Chapter Environmental Management 2. Risk Assessment in accordance with Rule Free Product Removal (in accordance with Rule ). 4. Secondary Investigation and Development of Corrective Action Plan (in accordance with Rule through ). 5. Implementation of Corrective Action Plan. This shall include the costs of: finalizing equipment design; purchase of equipment and materials to be dedicated to the site for corrective action; installation and bringing to operational status the corrective action system; operation and maintenance costs of corrective action system for the total projected time period in which the corrective action system will be needed to comply with corrective action limits of Chapter of the ADEM Administrative Code. 6. Provision of alternate water supply. (e) Upon review of a cost proposal for any of the activities identified in (d)1. through 6. above, the Department may: 1. Approve the cost proposal and authorize work to be initiated; or 2. Require a modification to or clarification of the cost proposal if projected costs are not determined to be reasonable. (f) In addition to the above requirements of (c), (d) and (e) of this Rule, the owner or operator shall upon submittal of a cost proposal for a site investigation, also submit an estimate of the total cost of remediation for the site which shall be used solely for the purpose of the Commission, the Department, and the Advisory Board in projecting future funding requirements for the Tank Trust Fund. The total estimated cost of remediation for a site shall be updated by the owner or operator as necessary and as more complete information regarding a site becomes available. (g) Upon approval of a cost proposal by the Department, sufficient funds will be obligated from the Tank Trust Fund for completion of the particular phase of work for which the cost proposal was submitted and authorization will be provided for the initiation of the proposed action. Supp. 9/30/

19 Obligation of funds shall be subject to the availability of funds at the time of acceptance of the cost proposal. (h) Response actions performed prior to approval of an associated cost proposal may not be eligible for reimbursement. (i) If the costs of completing any of the response actions of subparagraph (d)1. through 6. is expected to exceed the amount of an approved cost proposal, an amended cost proposal must be submitted and approved to allow additional funds to be obligated. (j) Any response action which is carried out in response to any discharge, release or threatened release of motor fuels from an UST or AST must be conducted in accordance with the requirements of Rules through and subparagraphs (a) through (d) of this Rule. (k) The owner or operator shall keep and preserve detailed records demonstrating compliance with approved investigative and corrective action plans and all invoices and financial records associated with costs for which reimbursement will be requested. These records shall be kept for at least three years, or as otherwise instructed by the Department, after corrective action has been completed for a site. (l) The selected investigative and/or corrective action alternative must be implemented in a manner acceptable to the Department in order for the owner or operator to be eligible for the reimbursement of costs associated with those activities. (m) An eligible owner or operator conducting AST response actions from August 1, 1993 until June 1, 1994 relative to any discharge, release or threatened release of motor fuels from an AST, is entitled to reimbursement of reasonable costs from the Tank Trust Fund if the release was discovered and subsequently reported August 1, 1993 or after, and is exempted from the requirements of subparagraphs (a) through (h) above, provided that response actions were carried out in a manner acceptable to the Department. (n) If response actions which were initiated during the time period referenced in subparagraph (m) above are still continuing upon the effective date of these regulations, the Department will require submittal of cost proposals for any remaining phases of work and for the total projected cost of the remediation. (o) If the contractor performing response actions as described in subparagraph (n) above is not an approved Supp. 9/30/

20 Chapter Environmental Management contractor, the Department may authorize the continued use of that contractor. Statutory Authority: Code of Ala. 1975, , March 18, 1994; effective April 22, Amended: Filed August 28, 2003; effective October 2, Requirements For Tank Trust Fund Coverage Of Third Party Claims. An eligible owner or operator is entitled to Tank Trust Fund coverage for third party claims resulting from the release of motor fuels from an UST or AST, subject to the following provisions: (a) The Department was notified by the owner or operator within thirty (30) days of receipt of notice of the third party liability suit. (b) The owner or operator was in substantial compliance at the time a release occurred and at the time the third party suit is filed. (c) The third party liability suit must name the Director, in his official capacity as representative of the fund, and the owner or operator. (d) The third party obtains a final judgment enforceable in Alabama. (e) The eligible UST owner or operator submits proof of payment of the first $5,000 of a final judgment or in the case of an eligible AST owner or operator the first $10, of a final judgment or such other amount as may be established by the Commission. Statutory Authority: Code of Ala. 1975, March 18, 1994; effective April 22, Tank Trust Fund Obligations. (1) Contingent upon availability of funds the Department will make obligations from the Tank Trust Fund when: Supp. 9/30/

21 (a) A cost proposal for response actions, submitted in accordance with Rule , is approved by the Department. (b) A judgment for a third party claim is submitted for payment in accordance with Rule and (c) A payment application in accordance with Rule , is received for: 1. Response actions work performed from August 1, 1993 until June 1, 1994 for an AST, is subject to a determination of reasonable costs by the Department. 2. Investigative or corrective actions under the terms of Rule (b). (2) If the unobligated balance of the Tank Trust Fund is less than the total amount associated with payment applications, cost proposals and third party judgments which have been approved by the Department, to the extent allowed by available funds, funds will be obligated in the chronological order in which the claims were submitted. Statutory Authority: Code of Ala. 1975, , March 18, 1994; effective April 22, Tank Trust Fund Ineligible Costs. (1) Costs of replacement, installation, closure and/or retrofitting, or testing of affected tanks and associated piping shall not be eligible for payment or reimbursement by the Tank Trust Fund. Additionally, any equipment or labor or installation costs not integral to site rehabilitation or provision of an alternate water supply are not eligible for reimbursement from the Tank Trust Fund. (2) The cost of equipment purchases other than routinely required supplies which are expended at a given site or equipment which must be installed at a site to implement a corrective action plan, shall not be charged to the cost of rehabilitating any given site at which Tank Trust Funds are being claimed for investigative or corrective action costs. Examples of equipment which could not be charged to a specific site would include: drilling rigs, earth moving equipment, groundwater sampling pumps, and photoionization detectors. Examples of Supp. 9/30/

22 Chapter Environmental Management equipment which could be charged to a specific site would include: bailers, sample containers, etc. Hourly charges for equipment may be established in the cost proposal submitted for each major phase of work. These hourly rates must be competitive with similar charges by other approved contractors, or they may be rejected by the Department if they are determined to represent unreasonable costs. (3) The costs associated with environmental audits and property transfer audits are not eligible for reimbursement from the Tank Trust Fund. (4) The first $5000 in the case of an UST or $10, in the case of an AST of approved response action costs, or such other amount as may be approved by the Commission, which are incurred by the owner or operator are not eligible for reimbursement from the Tank Trust Fund. Proof of payment of the first $5000 for UST or $10, for AST or another amount as may be approved by the Commission, is required prior to reimbursement of any costs. (5) The first $5000 in the case of an UST or $10, in the case of an AST of a final judgment obtained by qualified third parties are not eligible for disbursement from the Tank Trust Fund. Proof of payment by the eligible UST owner or operator of the said first $5000 in the case of an UST or $10, in the case of an AST of a final judgment is required prior to disbursement of fund monies. Statutory Authority: Code of Ala. 1975, , March 18, 1994; effective April 22, Applications For Payment. (1) Applications for reimbursement for costs of response actions shall be submitted on a form established by the Department which shall include an itemization of all charges according to labor hours and rates, analytical charges, equipment charges, and other categories which may be identified by the Department, or which the applicant may wish to provide. Documentation of charges must be submitted as part of the application, as required by the Department. (2) The application shall contain the following statement which shall be signed by the owner or operator and the Supp. 9/30/

23 project manager of the contracting firm responsible for performance of response actions where applicable: I certify to the best of my knowledge and belief: that the costs presented herein represent actual costs incurred in the performance of response actions related to this site during the period of time indicated on this application; and that no charges are presented as part of this application that did not result from the performance of response actions which were necessary due to the release of motor fuels at this site. (3) The application shall contain the following statement which shall be signed by the owner or operator: I certify that an unintentional release has occurred from a motor fuel underground storage tank system or aboveground storage tank system at this site. (4) Applications for payments may be submitted following acceptance by the Department of completed response actions. Such response actions may include but are not limited to the following: (a) Completion of site stabilization activities which were authorized by the Department. (b) Completion and submittal of a report for a Preliminary Investigation. (c) Implementation of a Free Product Removal System. (d) Completion and submittal of a report for a Secondary Investigation and Development of a Corrective Action Plan. (e) (f) (g) Implementation of a Corrective Action Plan. Provision of an alternate water supply. Completion and submittal of Risk Assessment. (5) Applications for payments for the implementation of corrective action may be submitted ninety (90) days following initiation of work to implement the corrective action plan and at ninety (90) day intervals thereafter until completion of the authorized activities. Upon request, the Department may approve interim payments at more frequent intervals. (6) All payments shall be subject to approval by the Department. Should a site inspection or other information Supp. 9/30/

24 Chapter Environmental Management available to the Department reveal a discrepancy between the work performed and the work addressed by a payment application, the Department may deny payment or may require the Tank Trust Fund to be reimbursed. (7) An application for payment must be received within one year from the date of the approval of the associated cost proposal in order to be eligible for payments from the Tank Trust Fund. (8) Except as provided for in Rule (c)(1), payments shall not be made for response actions performed at a site until the Department has reviewed and approved a cost proposal for that work and until funds have been obligated from the Tank Trust Fund for completion of that particular stage of work. (9) For payment of third party claims the UST or AST owner or operator must submit an application to the Department attaching the original or a certified copy of a final judgment, enforceable in this state with proof of payment of the first $5000 for a UST or $10, for a AST, as the case may be no later than thirty (30) days after notification of judgment. (10) Payments for response actions, the cost of which exceed the scope or amount of the approved cost proposal for that action, are subject to approval by the Department. Statutory Authority: Code of Ala. 1975, March 18, 1994; effective April 22, Tank Trust Fund Payment Procedures. (1) Where the owner or operator has submitted an complete application for payment for response action costs or third party claims but has not paid for these activities or claims, payments will be made by a check written to the Tank Trust Fund Response action contractor who provided the response action services or the third party. (2) Payments from the Tank Trust Fund will be made directly to the eligible owner or operator in cases where the owner or operator submits documentation verifying the owner or operator has paid for response actions. Supp. 9/30/

25 (3) Contingent upon availability of funds the Department shall process all complete applications for payment within sixty (60) days of receipt of application. If certain costs are considered as not being reasonable or eligible for reimbursement, the Department may issue a check for the amount of the application not in question and provide a fifteen (15) day period in which the owner or operator or contractor may present such information as is necessary to justify the disallowed costs. Following review of such information, the Department may agree to pay the previously disallowed costs, or any portion thereof, or may again disallow the costs for payment. Statutory Authority: Code of Ala. 1975, , March 18, 1994; effective April 22, Approval Of Response Action Contractors. (1) Response action contractors will be approved to perform Tank Trust Fund work upon satisfaction of the following: (a) Response action contractors who wish to perform work under the Tank Trust Fund must demonstrate to the satisfaction of the Department through the submittal of a technical proposal that they have hydrogeological and engineering staff with significant experience in performing investigative and corrective actions for soil and groundwater contamination and knowledge of technical considerations necessary to perform petroleum contamination assessments. The response action contractor must provide services (that include, but are not limited to) tank tightness testing, analytical and emergency response capabilities. The Department shall establish guidance for the preparation of a technical proposal that identifies the information required to be submitted with the technical proposal. The Department will approve those response action contractors that demonstrate the capabilities and expertise, as stated above, to perform Tank Trust Fund response actions. Response action contractors must maintain staff, as stated above, to continue to perform Tank Trust Fund response actions. (b) The contractor shall maintain liability insurance coverage of the types and in the amounts described in the table below and shall provide certification to the Department of such coverage upon meeting the requirements of (a) above of this Rule, and yearly thereafter. Supp. 9/30/